SANDF refuses to march to court tune

The South African National Defence Force will continue to reject applicants
who are HIV positive until
an appeal on the matter is
decided.

The SANDF has decided to appeal
a judgment made in the Pretoria
high court last month, in which
Judge Meyer Joffe ruled that
the discriminatory practice was
unlawful.

He condemned the SANDF’s continued blanket ban on recruiting
“anyone and everyone who is living
with the human immunodeficiency
virus” despite a court-sanctioned
agreement with the SANDF six
years ago that found this practice
unconstitutional.

Section27 and two defence force
unions took the SANDF, the surgeon
general, the South African Military
Health Service and several other
respondents to court in a bid to have
what it views as unconstitutional
practices overturned.

Mark Heywood, executive director of Section27, told the Mail &
Guardian that HIV was treatable,
which gave the SANDF no grounds to
discriminate against recruits.

He said the SANDF’s decision to
appeal the ruling was a waste of taxpayers’ money because it was bound
to lose. The SANDF was repeatedly
asked for comment, but failed to
respond.

“We are shocked by the SANDF’s
intentions to appeal this matter, particularly in light of its own policy and
the existing jurisprudence.

“This clearly demonstrates a complete disregard for the rights of people living with HIV,” Heywood said.

Judge Joffe said the SANDF had
issued new internal policies that
were in line with the Constitution,
and stipulated that when deploying
HIV-positive members the most vital
criteria was his or her fitness to perform duties, without any additional
risk to health.

“It is clear from the new policy
that new recruits who are HIV
positive are not thereby automatically excluded,” according to the
judgment.

In its answering affidavit, the
SANDF argued that, because it was
able to choose between applications,
it eliminated those unsuitable to
posts, and the starting point was the
health examination.

Judge Joffe said it was “vexatious and frivolous and an abuse of
process” for the SANDF to seek to
argue the same issues that had been
thrown out in the previous court
order.

He said there was no evidence
to suggest that its requirement of recruiting the best staff required a
blanket exclusion of all HIV-positive
candidates.

In his decision, Judge Joffe said
the SANDF had to appoint two applicants, Andisiwe Dwenga and an
unnamed person.

A punitive cost order was also
ordered against the SANDF.

Heywood said Section27 did not oppose HIV testing, as long as this
was just one aspect of health assessments, and was required in risky situations, such as surgery.

He argued the SANDF should
assume that everyone was HIV positive and treat each case with equal
caution.

Section27 is also pursuing a similar
case involving SAA.

Discrimination against people with HIV was not specific to public departments, he said.
They were also seeing more of these cases in the private sector.

“More importantly, following the the SANDF case, more people have come forward with their cases,” said Heywood.

“This has largely been as a result of the exposure from the case and the success in court.”